I'm going to cut to the chase and say that this is the basic conclusion of an editorial in today's Los Angeles Times, entitled "Is the Bush administration criminally liable for its lawlessness?"
Here is the basic question, as spelled out by the Times:
Whatever its other legacies, the Bush administration will be remembered for its contemptible disregard for the law in the post-9/11 war on terrorism. From the wiretapping of Americans without a court order to the waterboarding of suspected terrorists to the refusal to abide by the requirements of the Geneva Convention, many of the administration's policies can fairly be described as lawless.
But were they also criminal? Should officials, including Vice President Dick Cheney and former Defense Secretary Donald H. Rumsfeld, be put on trial, either in a court of law or in a forum like South Africa's Truth and Reconciliation Commission? As the Bush administration nears its end, calls for such a reckoning are coming from civil libertarians and some supporters of President-elect Barack Obama. Some even argue that President Bush should be indicted.
The paper's editorial writers go on, however, to find ways to let administration figures off the hook:
The former model is reminiscent of the Watergate scandal, in which several officials -- including President Nixon -- broke identifiable criminal statutes by obstructing the investigation of a burglary motivated by partisan politics. From there, of course, Watergate expanded into a web of criminal violations, from break-ins to the use of the IRS to punish political enemies of the Nixon White House. It's conceivable that individuals in the Bush administration violated criminal law. But if they did so as part of a post- 9/11 response to terrorism, it would be all but impossible to prosecute them successfully.
Besides, the scandal of the Bush administration wasn't a matter of individual, politically motivated violations of law. Rather, it was a systemic failure to take seriously the spirit as well as the letter of this country's commitment to the humane treatment of prisoners or the privacy rights of Americans secured by the Foreign Intelligence Surveillance Act, or FISA.
That's a failure in which Congress must share culpability with the administration. It was the administration that, with the help of compliant legal counsel, rationalized the use of "enhanced" interrogation techniques such as waterboarding, sleep deprivation, humiliation and the use of dogs to intimidate prisoners of war and suspected terrorists. But, as the vice president argued recently, Congress at first either acquiesced in, or offered muted objections to, the administration's policies. That the failures were collective rather than individual makes them no less appalling, but it does suggest that a criminal prosecution will not remedy them.
The editorial goes on in that vein, and then concludes:
The Bush administration's lawlessness calls for a serious reckoning, one that already has begun with a scathing report by the Senate Armed Services Committee about the role played by Rumsfeld and other officials in the spread of abusive interrogation techniques. That's welcome and appropriate -- and a vindication of American institutions designed to investigate the misconduct of public officials. Further congressional investigation of the administration's spying program is also in order. But as enticing as many find the idea of putting Rumsfeld or Cheney in the dock, neither a show trial nor a truth commission would be the right way to expunge or atone for the abuses of this administration. Thankfully, those who sanctioned them will soon be history.
Read the entire editorial and see what you think, although we can expect more and more of this kind of argument in the coming weeks and months. The problem is that those who accuse Bush et al. of war crimes do so under statutes of international law as well as U.S. laws, which means that we--that is, we Americans--do not get the right to decide the issue. Indeed, similar arguments could be made about Nazi war crimes, which after all were approved by all levels of German society (who passed the Nuremberg Laws of 1935, which were the basis of most subsequent actions against the Jews, in letter and in spirit? The German Reichstag.) And the Rwandan genocide against the Tutsis in 1994 was likewise organized and carried out by a broad range of government officials.
The question of who should be charged, or not, for war crimes during the war on terror rightly belongs to international jurists and international courts, and sooner or later they will be invoked. When that happens, the U.S. Justice Department should provide them its full cooperation.
Homeless in Paris. My Paris colleague Katrin Bennhold, one of the finest journalists anywhere, has a story in today's International Herald Tribune about a homeless mother named Julie Lacoste, who is searching for an apartment for herself and her two boys as Christmas approaches. Despite the promises of the Sarkozy government in 2006 that homeless deaths would end within two years, deaths of homeless people are up in 2008 over 2007, Katrin reports. Lacoste, by the way, has a part-time job; Katrin brings the story alive by providing the details necessary to understand one person's sorrows. Kudos to her, and to the Trib's editors for giving her the space to tell the story.
Thierry Magon de La Villehuchet. The first apparent suicide in the Bernard Madoff investment fraud scandal is a French investment advisor (and presumed "feeder") based in Manhattan. His firm lost a reported $1.5 billion. (Other victims of Madoff include Steven Spielberg and a whole host of people who should have known better.) How is it possible that the titans of the financial world don't seem to know how wealth is created? That's the only thing one can conclude when investment wizards believe such high rates of return are plausible. Did they not bother to ask where Madoff was placing the investments, or were they told it was a "secret" when they did ask? (Perhaps making the fairy tale all the more enticing.) Well, perhaps they should read Balter's Blog on this subject, file: Madoff, or better yet go to some basic sources on the labor theory of value. "Das Kapital" would be a good place to start.
Marriage Saudi style. A judge has refused to annul the arranged (read: forced) marriage of an 8 year old girl to a 47 year old man to settle a debt. This is our great ally in the Middle East.